It was a warm morning in June 2011 when the building inspector arrived at Bill Kirton’s gelato parlor in Paia. The reason, Kirton would later find out, was a complaint made in 2007 — four years before he and his wife purchased what they thought was a turnkey business.

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Kirton said he didn’t know that the previous owners had built and operated the parlor in a space they were renting without a “certificate of occupancy” — the stamp of approval needed to open. He had a month to resolve things or face a fine of $500, plus penalties up to $100 per day.

Kirton jumped to start the work needed to get everything legal. But after years of working back and forth with engineers and a number of different county departments to get the space up to code, he still couldn’t get permission to operate because the old building along Hana Highway didn’t have parking. The dispute centered on whether the gelato parlor is a “retail” business or, a “restaurant.” If the county deemed it a “restaurant,” it could’ve signed off because there was a grandfather clause that said a food establishment didn’t need parking there, according to court filings.

Paia Gelato makes its frozen dessert in store every day except Christmas. Marina Riker/Civil Beat/2022

As the debacle continued over the years, the fines against Paia Gelato amassed to more than $1.2 million. Kirton decided to cut his losses. He moved to another space down the block, where he watched a shave ice chain move into his old location — also without the certificate of occupancy. But after mediation with the county, that business won the right to operate. Now, after years of discussions with numerous county officials, pushing it up the chain to two different mayors, filing claims with insurance adjusters and attempting to mediate themselves, the Kirtons are suing the local government, alleging it wasn’t equal in its enforcement when it argued Paia Gelato wasn’t a restaurant.

“It’s more a broken system than it is one person,” Kirton said.

The saga began under the administration of former Mayor Alan Arakawa, who told Civil Beat that the Kirtons are “very, very justified in what they’re doing.” After they spent tens of thousands of dollars trying to fix the previous owner’s mistakes and get the gelato parlor up to code, and were still forced to move because of the parking issue, the Arakawa administration forgave the vast majority of their fines.

The dispute continued under Mayor Michael Victorino; Kirton said that he and the administration were headed toward mediation — they even had a date scheduled in August — but it was unexpectedly canceled. County attorneys did not respond to a request for comment, but in their initial response to the lawsuit, they largely denied the Kirtons’ allegations, including the assertion that the gelato business was forced out because of the county’s “arbitrary decision-making, which was based on ad hoc, madeup rules.”

“Arakawa tried to solve this problem, Victorino inherited it,” Kirton said. “We said … don’t pass it to another mayor.”

The Kirtons say they bought Paia Gelato without knowledge of its permitting issues. Marina Riker/Civil Beat/2022

But that’s exactly what’s happening.

Starting next year, the Kirtons will be dealing with the third administration to oversee the county since their troubles began. In January, mayor-elect Richard Bissen will take charge, responsible for choosing the next leaders of county departments, including planning, public works and corporation counsel, which houses the team of attorneys handling the government’s legal affairs. The mayor-elect declined to comment on the lawsuit.

Troubled Planning Department

Bissen will inherit a planning department that in recent years has been plagued by understaffing and accusations of inefficiency and unfair decision making. Earlier this year, an audit identified a number of problems in its zoning division, ranging from high staff turnover to permitting backlogs, to staffers’ distrust in the outgoing planning director, Michele McLean.

The department has also had its fair share of scandals, the most public of which unfolded over the “monster house” in Napili. Last week, members of the Napili Bay Community Association threatened to take legal action against the county, saying that officials hadn’t done enough to investigate how the 45-foot tall, eight-bedroom home with two pools — that the developer at one point intended to use as a vacation rental — was approved in a residential area.

“There is not a single citizen of our community that looks at this building every day and thinks that it’s compliant with the law,” Josh Downer of Napili Bay Community Association told council members.

The controversial Napili house being constructed by developer Greg Brown. Courtesy: Napili Bay Community Association

For some Maui County residents, the situation in Napili has been one of the most visible examples of what they say is a flawed system that has allowed bad actors to push limits with little repercussion, while others without the financial and legal resources aren’t always given the same leniency. Asked by a council member if the developer of the Napili house had been subject to any fines when the project violated height and square footage rules, McLean replied, “No.”

During a planning meeting last week, however, McLean said the department had made strides to examine its mistakes and make changes within the organization — and to county building codes — in hopes of making sure something like that would never happen again. Over the last year, the department has also made a push to hire more staff to chip away at backlogs, created an online map that allows anyone to search the status of construction projects and has also adopted a new online permitting system with a goal to “improve the timing, efficiency and transparency for all types of permits,” McLean said in a statement.

“The true benefits … have not yet been realized because it is taking time for applicants to get familiar with it and for our staff — and IT support — to work out the kinks,” she said.

The building that Paia Gelato used to occupy until it ran into permitting problems. Marina Riker/Civil Beat/2022

That was one of the questions raised in the Kirtons’ lawsuit: whether the previous owners who originally opened the Hana Highway gelato shop were even aware of the permitting problems because it took so long for the county to enforce them. The court filing points to that four-year gap between the initial complaint and the violation notice.

The decade that followed was characterized by constant whiplash as Kirton said he tried to set things straight with the various county departments that were “all going in different directions.” He also looked into whether the previous owner and his former landlord, who had a reputation for violating county rules, could be held accountable for the problems in some way but found little recourse there.

Paia Gelato’s new space, where the Kirtons say foot traffic has been less. Marina Riker/Civil Beat/2022

Since they made the move in 2017, the Kirton’s gelato business hasn’t returned to its former level, Kirton said. From the old location on the intersection of Hana Highway and Baldwin Avenue, tourists and locals walking down the sidewalk would be forced to wait in front of the shop before crossing the street; some of whom inevitably made the spur of the moment decision to order a scoop of gelato.

“I mean, if we had to pay a $1 million fine to stay down there — that’s a lot of gelato,” said Rachelle Kirton.

Civil Beat’s coverage of Maui County is supported in part by grants from the Nuestro Futuro Foundation and the Fred Baldwin Memorial Foundation.

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